370 F.Supp.2d 337 (2005) | Cited 1 time | D. Maine | April 7, 2005


On January 27, 2004, William Leland pleaded guilty to sevenfederal felonies. On January 19, 2005, Mr. Leland moved towithdraw his guilty pleas. Because Mr. Leland has not presented afair and just reason for withdrawal of his guilty plea andbecause his motion is untimely, this Court DENIES the Defendant'sMotion to Withdraw Guilty Plea.


On September 26, 2003, a Second Superseding Indictment issued,charging the Defendant William Leland with seven counts ofpossession with intent to distribute a variety of controlledsubstances, including methamphetamine, Ecstasy, marijuana,oxycodone, and cocaine, one count of possession of firearms by aconvicted felon, and a forfeiture count. On January 27, 2004, Mr.Leland pleaded guilty to six of the drug trafficking crimes andto the firearms possession charge; he also consented to theforfeiture.1 The Government agreed to dismiss Count IV,one of the drug trafficking charges, at sentencing. A. Pre-Guilty Plea Events: April 15, 2003 — January 26, 2004

The charges against Mr. Leland were extensively and thoroughlylitigated. On April 15, 2003, the Magistrate Judge ordered Mr.Leland detained pending trial (Docket No. 13). Mr. Lelandunsuccessfully appealed this Order to this Court, (Docket Nos.14, 22), and by interlocutory appeal, to the United States Courtof Appeals for the First Circuit. (Docket Nos. 25, 46, 51). Mr.Leland moved for release of his vehicle (Docket No. 15), forlocal detention (Docket No. 18), for sanctions (Docket No. 24),to unseal the case (Docket No. 28), to suppress evidence (DocketNo. 29), to disclose the identity of confidential informants(Docket No. 30), for a bill of particulars (Docket No. 42), againto suppress evidence (Docket No. 43), to sever Counts III and IV(Docket No. 44), for hearing on motion to suppress (Docket No.54), for discovery and disclosure (Docket No. 55), twice for bail(Docket No. 81, 87), to appoint counsel (Docket No. 89), todismiss (Docket No. 97), to sever and for relief from prejudicialjoinder (Docket No. 98), to unseal document and view sealedresponse (Docket No. 133), to strike a portion of the indictment(Docket No. 135), to amend detention order (Docket No. 171), andin limine (Docket No. 197).

By Order dated November 19, 2003, the case was specially setfor jury trial on January 26, 2004, for both jury selection andtrial. (Docket No. 103, 107). On January 22, 2004, Mr. Lelandfiled a Motion to Continue Trial; the Court granted a continuanceto January 29, 2004. (Docket Nos. 195, 198). On January 27, 2004,Mr. Leland entered a plea of guilty. (Docket No. 205).

B. The Guilty Plea: January 27, 2004

At the entry of the guilty plea, the Government presented a twopage document entitled Government's Version of the Offense datedJanuary 27, 2004, setting forth at a minimum the evidence it would have presented if the case had gone to trial.(Docket No. 206). In addition, the Government and Mr. Lelandpresented a plea agreement signed by Mr. Leland, his counsel, andthe Government's counsel, consisting of eight pages, detailingthe agreements of the parties. (Docket No. 207).

C. Post Guilty Plea Events: January 28, 2004 to Present

Following acceptance of the guilty plea, the Court orderedpreparation of a Presentence Investigation Report. The Report wasprepared on May 4, 2004 and revised on May 26, 2004. Following aJune 14, 2004 Presentence Conference, the United States SupremeCourt issued Blakely v. Washington, 542 U.S. ___,124 S. Ct. 2531 (2004) and the Court reset a Presentence Conference for July20, 2004 to discuss Blakely implications. The parties agreedthe case potentially presented Blakely issues and ultimatelydecided to await clarification from the United States SupremeCourt. On January 14, 2005, after United States v. Booker,543 U.S. ___, 125 S. Ct. 738 (2005), this Court reset the PresentenceConference for February 2, 2005 and on January 19, 2005, Mr.Leland filed the pending Motion to Withdraw Guilty Plea. TheDefendant requested oral argument, which was held on March 10,2005.

D. The Motion

Mr. Leland's January 19, 2005 motion states five grounds forwithdrawing his guilty plea and at oral argument, he added asixth. First, he received "newly discovered evidence" that hiswife, Ganessa Leland, was having an affair with one of theGovernment's confidential informants, conspired with theinformant to put him in prison, and committed perjury at Mr.Leland's detention hearing and before the grand jury. Mr. Lelandasserts his wife had the "opportunity and apparent desire toplace the alleged methamphetamine in the vehicle in which theDefendant was traveling." Def.'s Mot. to Withdraw at 1. Hecontends he would not have entered the guilty plea if he had been aware of these facts andhe requested a testimonial hearing to develop the factualpredicate for this claim.2

Second, in further review of the Jencks material, providedshortly before the plea hearing, the Defendant discovered"repeated weight changes, color changes, and packing differencesin the alleged methamphetamine found in the spare tire of thevehicle in which the Defendant was traveling." Def.'s Mot. toWithdraw at 2.

Third, Defendant asserts the Government seized the Defendant'scamera and film and he contends these items contain exculpatoryevidence. Despite numerous requests, they have never been turnedover to him.

Fourth, the Defendant entered his guilty plea when theSentencing Guidelines were mandatory; however, since the plea,the United States Supreme Court decided United States v.Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), making theGuidelines advisory and allowing the sentencing court greaterflexibility in imposing sentences outside the guideline range ofsentence.

Fifth, the Defendant believes the Government failed to discloseall evidence "regarding the crimes and activities" of twoconfidential informants.

Sixth, the Defendant contends that Pamela Paradis, aco-conspirator, later admitted she had committed perjury at Mr.Leland's April 11, 2003 detention hearing and therefore, if hiscase had gone to trial, he would have been able to impeach hercredibility.

E. The Government's Response

The Government responds that the Motion to Withdraw Guilty Pleais untimely, that it should be denied because Mr. Leland makes noclaim of actual innocence, that the plea was pursuant to anenforceable plea agreement, and that there is no challenge to theRule 11 itself. II. DISCUSSION

Rule 11(d) addresses the withdrawal of a guilty plea after theplea has been accepted, but before sentencing. Fed.R.Crim.P.11(d)(2)(B). The Rule provides that at this stage a defendant maywithdraw a plea of guilty if "the defendant can show a fair andjust reason for requesting the withdrawal."3 Id. Adefendant has no absolute right to withdraw a plea, UnitedStates v. Gonzalez, 202 F.3d 20, 23 (1st Cir. 2000), and theburden of persuasion rests upon the defendant. United States v.Castro-Gomez, 233 F.3d 684, 687 (1st Cir. 2000); United Statesv. Marrero-Rivera, 124 F.3d 342, 347 (1st Cir. 1997). Whether togrant a motion for withdrawal of guilty plea rests in the sounddiscretion of the sentencing court and is reviewed for an abuseof discretion. Castro-Gomez, 233 F.3d at 686; United States v.Ribas-Dominicci, 50 F.3d 76, 78 (1st Cir. 1995).

The First Circuit has identified five factors to assess whetherthe defendant's reasons justify withdrawal: 1) whether the pleawas voluntary, intelligent, and knowing when made, and compliedwith Rule 11; 2) the force of the defendant's reason for thechange of plea; 3) the timing of the request; 4) whether thedefendant asserts actual innocence; and, 5) whether a pleaagreement has been reached. United States v. Padilla-Galarza,351 F.3d 594, 597 (1st Cir. 2003); Gonzalez, 202 F.3d at 24;United States v. Richardson, 225 F.3d 46, 51 (1st Cir. 2000),cert. denied 531 U.S. 1203 (2001). Before allowing a defendantto withdraw his plea, the court must also consider the potentialprejudice to the government. Richardson, 225 F.3d at 51;Marrero-Rivera, 124 F.3d at 347. A. The Plea: Voluntary, Intelligent, and Knowing

Whether the plea was voluntary, intelligent and knowing is themost significant of the five factors. Padilla-Galarza,351 F.3d at 597; Richardson, 225 F.3d at 51; United States v.Cotal-Crespo, 47 F.3d 1, 3 (1st Cir. 1995). To make thisassessment, the courts will first review the Rule 11 hearing todetermine whether the "court adequately observed the formalitiesimposed by Rule 11, which are intended to assure that thedefendant understands the charge and the consequences of theplea." Padilla-Galarza, 351 F.3d at 597.

Rule 11(b) sets forth the district court's obligations inadvising and questioning the defendant. Fed.R.Civ.P. 11(b)(1).Here, Mr. Leland does not claim any defect with the Rule 11hearing itself.4 Strict compliance with Rule 11 is "quiteoften dispositive in determining whether a defendant hasknowingly and voluntarily entered a guilty plea." United Statesv. Austin, 948 F.2d 783, 787 (1st Cir. 1991). Based on Mr.Leland's concession and this Court's review of the Rule 11colloquy, this Court concludes the formalities of Rule 11 werecomplied with at the hearing on January 27, 2004. This Courtconcludes there was an absence of coercion, Mr. Leland understoodthe charges, and had knowledge of the consequences of the guiltyplea. See United States v. Sahlin, 399 F.3d 27 (1st Cir. 2005);Cotal-Crespo, 47 F.3d at 4; see United States v. Santiago,229 F.3d 313, 317 (1st Cir. 2000) (quoting United States v.Santo, 225 F.3d 92, 99 (1st Cir. 2000)); United States v.Gose, 260 F. Supp. 2d 209, 211 (D. Me. 2003).

B. The Force of the Defendant's Reasons

A defendant may not renounce his guilty plea "without advancinga plausible reason for so doing." United States v. Doyle,981 F.2d 591, 594 (1st Cir. 1992). Plausibility, however, must "reston more than the defendant's second thoughts about some fact orpoint of law, or about the wisdom of his earlier decision." United States v.Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir. 1994) (citationsomitted).

1. Strength of the Government's Case

Mr. Leland initially raised four issues addressing the strengthof the Government's case against him: 1) Ganessa Leland's lack ofcredibility; 2) discrepancies in the Jencks material'sdescriptions of the methamphetamine; 3) the camera and film; and,4) the backgrounds, including the criminal histories, of theGovernment's confidential informants. At oral argument, heinserted a fifth issue: the credibility of Pamela Paradis, one ofthe Government's witnesses. Transcript of Oral Argument at 5-6.These contentions, however, miss the point. Mr. Leland admittedunequivocally that he was in fact guilty of each of the crimes towhich he pleaded guilty.5 He also admitted that the factsset forth in the prosecution version were true to his ownpersonal knowledge.6 Having voluntarily, intelligently,and knowingly admitted he committed the crimes, Mr. Leland cannotwithdraw his guilty pleas because he now believes the Governmentcould not have proven them.

For example, Mr. Leland makes an allegation about differingdescriptions in the Jencks material of the methamphetamine foundin the spare tire in the trunk of his car. But, the prosecutionversion alleges: A subsequent search of the spare tire located in the vehicle's trunk revealed a package containing approximately 703.5 grams of a substance containing methamphetamine. Prosecution Version at 2 (Docket No. 206). Having admitted this amount of this controlled substance was in the spare tire in his trunk, it is beside the point whether the Defendant knew then or learned later he might have made inroads on cross-examination into aspects of the Government's case. The same holds true of Mr. Leland's other contentions.7

It is "the policy of the law to hold litigants to theirassurances." Parrilla-Tirado, 22 F.3d at 373. The law does not"permit a defendant to turn his back on his own representationsto the court merely because it would suit his convenience to doso." Id. (quoting United States v. Pellerito, 878 F.2d 1535,1539 (1st Cir. 1989)); United States v. Martinez-Molina,64 F.3d 719, 733 (1st Cir. 1995) (statements at plea hearing "carrya strong presumption of verity") (quoting Blackledge v.Allison, 431 U.S. 63, 74 (1977)). Ordinarily, a defendant is"stuck with the representations that he himself makes in opencourt at the time of the plea." Padilla-Galarza,351 F.3d at 598. Those representations are "more likely to be reliable thanlater versions prompted by second thoughts, and guilty pleas —often in the defendant's best interest — could hardly be managedany other way." Id.

It is human nature for defendants to wonder what would havehappened if they had put the Government to its proof and later torue their decisions to plead guilty. But, defendants are notallowed, absent coercion or mistake, to "renege on pleaagreements on the basis that they have miscalculated their risksand benefits or have belatedly discovered a new defense." United States v. Muriel, 111 F.3d 975, 981 (1st Cir. 1997). In UnitedStates v. Allard, 926 F.2d 1237, 1243 (1st Cir. 1991), the FirstCircuit wrote: In reaching a plea bargain, a defendant assesses the likelihood of conviction and balances that against the relative severity of the sentence he expects to receive pursuant to the agreement and that which could be imposed upon conviction. In many cases, that process results in a compromise pursuant to which the defendant makes a conscious decision to relinquish a perceived defense. . . . To hold otherwise would render plea agreements and the pleas entered pursuant to them meaningless.See also Brady v. United States, 397 U.S. 742, 757 (1970) ("Adefendant is not entitled to withdraw his plea merely because hediscovers long after the plea has been accepted that his calculusmisapprehended the quality of the State's case. . . ."). ThisCourt concludes Mr. Leland has not presented a "plausible" reasonfor withdrawal of his guilty plea.

2. The Booker Argument

Mr. Leland pleaded guilty before Booker and he claims thechanges of law wrought by Booker should allow a withdrawal ofhis guilty plea. The First Circuit, however, recently made shortwork of a similar argument. Sahlin, 399 F.3d at 30-31. AlthoughSahlin addressed a defendant who had been sentenced as opposedto one awaiting sentence,8 the First Circuit noted thatthe "possibility of a favorable change in the law occurring aftera plea is one of the normal risks that accompany a guilty plea."Id. at 31. Sahlin is consistent with the longstandingprinciple that "a voluntary plea of guilty intelligently made inthe light of the then applicable law does not become vulnerablebecause later judicial decisions indicate that the plea rested ona faulty premise." Brady, 397 U.S. at 757. The First Circuitconcluded Mr. Sahlin's Booker argument was "frivolous."Sahlin, 399 F.3d at 31. The pre-Blakely to post-Bookerchanges in the law standing alone do not state a "fair and just reason" forallowing the withdrawal of his guilty plea.

C. The Timing of the Motion

In Mr. Leland's case, the Court accepted his guilty plea onJanuary 27, 2004 and the motion to withdraw was filed on January19, 2005, nearly twelve months later. The First Circuit notedthat a "long interval between the plea and the request oftenweakens any claim that the plea was entered in confusion or underfalse pretenses." Gonzalez, 202 F.3d at 24 (quoting Doyle,981 F.2d at 595), see also United States v. Isom, 85 F.3d 831,838-39 (1st Cir. 1996). It has also noted that the "longer adefendant waits before moving to withdraw his plea, the morepotency his motion must have in order to gain favorableconsideration." United States v. Gonzalez-Vazquez, 34 F.3d 19,23 (1st Cir. 1994) (quoting Parrilla-Tirado, 22 F.3d at 373(1st Cir. 1994)).

The First Circuit has explained, however, the "relevanttemporal gap" is not the time between the Rule 11 and the motionto withdraw, but rather the time between the defendant's"discovery of new information and the filing of his motion."Gonzalez, 202 F.3d at 24. The First Circuit has rejected pleawithdrawal motions in which the relevant gap was eight months,Id.; six months, see Doyle, 981 F.2d at 595 andParrilla-Tirado, 22 F.3d at 373; five months, see UnitedStates v. Torres-Rosa, 209 F.3d 4, 9 (1st Cir. 2000); fourmonths, United States v. Gonzalez-Vazquez, 34 F.3d 19, 23 (1stCir. 1994); fourteen weeks, United States v. Marrero-Rivera,124 F.3d 342, 354 (1st Cir. 1997); two months, see Isom,85 F.3d at 839; eight weeks, see Pellerito, 878 F.2d at 1541, andUnited States v. Crosby, 714 F.2d 185, 192 (1st Cir. 1983),cert. denied 464 U.S. 1045 (1984); three weeks, see UnitedStates v. Keefe, 621 F.2d 17, 18 (1st Cir. 1980); and, even thirteen days, see United States v.Ramos, 810 F.2d 308, 313 (1st Cir. 1987).

Mr. Leland's motion is untimely. It was filed nearly a yearafter his plea was accepted and eight months after thePresentence Report was completed. Before entering the guiltyplea, Mr. Leland was aware the camera and film had not beenturned over and he was in possession of the Jencksmaterial.9 At oral argument, Mr. Leland conceded that hewas aware of the factual bases for all remaining allegations bythe Presentence Conference in the summer of 2004.10Transcript of Oral Argument at 15. Although he could not havebeen aware of the precise contours of the Booker argument untilthe United States Supreme Court issued Booker, he was aware asof June 24, 2004, when the Supreme Court issued Blakely, of theissues Booker later resolved and could have raised them in amotion by the early summer of 2004.11 For his ownreasons, Mr. Leland elected to wait nearly one year afterentering his guilty plea and months after receiving informationthat he now contends justifies his withdrawal of the plea.Applying First Circuit authority, Mr. Leland's motion isuntimely. Doyle, 981 F.2d at 595 ("While an immediate change ofheart may well lend considerable force to a plea withdrawalrequest, a long interval between the plea and the request oftenweakens any claim that the plea was entered in confusion or underfalse pretenses."). D. Whether the Defendant Asserts His Actual Innocence

Among the more troubling aspects of Mr. Leland's motion is thesequencing of his assertion of actual innocence. The FirstCircuit has said that courts will "look more hospitably on amotion to withdraw a guilty plea when the motion is coupled withan assertion of innocence." Doyle, 981 F.2d at 596. On theother hand, if the Defendant does not proclaim his actualinnocence, this factor "cuts sharply against allowing appellant'smotion to withdraw his guilty plea." Parrilla-Tirado,22 F.3d at 373; see Doyle, 981 F.2d at 596.

Mr. Leland's written motion referred somewhat obliquely to hisactual innocence to the methamphetamine count. He wrote that hiswife's affair with a confidential informant had given her the"opportunity and apparent desire to place the allegedmethamphetamine in the vehicle in which the defendant wastraveling." Def.'s Mot. to Withdraw at 2. He did not, however,directly assert he was innocent of the methamphetamine count orfor that matter any other count.

At oral argument, this Court directly asked whether Mr. Lelandwas proclaiming his actual innocence of the crimes. Transcriptof Oral Argument at 24. Mr. Largay's initial response was thathis client was asserting his actual innocence only to themethamphetamine charge.12 Id. After further colloquybetween the Court and Mr. Largay, Mr. Leland asked to speak withhis attorney and after consultation, Mr. Largay represented tothe Court that Mr. Leland is maintaining "his innocence with respect to more thanthat one crime." Id. at 30-31. Mr. Largay stated Mr. Leland issaying he did not even possess the firearm. Id. at 33-34.

This Court concludes Mr. Leland's maintenance of his innocenceis purely opportunistic. He repeatedly admitted each crime at theRule 11 on January 27, 2004. He reiterated in his own writing hiscommission of the methamphetamine crime by letter to the Courtdated March 11, 2004. He did not clearly assert his actualinnocence in the January 19, 2005 written motion. His firstassertion of actual innocence came only after the Court's inquiryon the issue and then only to the methamphetamine count. Finally,after learning the potential significance of actual innocenceduring the oral argument, he altered his tactics and decided toproclaim he had not committed any crimes. In the Court's view,Mr. Leland's sudden change of mind was a transparent attempt toalter the facts to fit the legal criteria. This Court does notcredit Mr. Leland's oral argument epiphany that he has beenactually innocent all along.

E. Whether a Plea Agreement Was Entered Into and Breached

Mr. Leland does not dispute he entered into a pleaagreement13 and under Gonzalez, the signed agreement"casts further doubt on his claims." Gonzalez, 202 F.3d at 24.In Ramirez-Benitez, the First Circuit reviewed the contents ofthe plea agreement in tandem with the Court's inquiry at the Rule11. United States v. Ramirez-Benitez, 292 F.3d 22, 28 (1st Cir.2002). Here, the plea agreement contains not only the signatureof the Government's attorney, but also the signatures of theDefendant and his attorney. During the Rule 11, Mr. Lelandconfirmed the Defendant's signature was his, he had signed theagreement voluntarily, he had read the agreement before he signed it, he understood all its contents,and by signing it he intended to agree to all its terms andconditions.14

The plea agreement set forth in detail the charges to which hewas pleading guilty, the maximum and minimum terms ofimprisonment, and other potential penalties. It also specificallyaddressed in three separate places limitations on the Defendant'sability to withdraw his guilty plea: 1) it clarifies inunderlined script that Mr. Leland will not be permitted towithdraw his guilty plea if the court determines mandatoryminimum periods of imprisonment applied; 2) it states he will notbe permitted to withdraw his guilty plea if the Government doesnot recommend he receive acceptance; and, 3) it confirms if thecourt were to reject the sentencing recommendations of theparties, he would not be thereby permitted to withdraw his guiltyplea. (Docket No. 207 at 3, 4, 5). Mr. Leland makes no claim theGovernment has breached the terms of the plea agreement.Transcript of Oral Argument at 36; compare United States v.Tilley, 964 F.2d 66, 69-71 (1st Cir. 1992). This Court concludesthe plea agreement in this case "casts further doubt" on themerits of his motion. Gonzalez, 202 F.3d at 24.

F. Prejudice to the Government

It is unnecessary to address the possibility of prejudice tothe Government, since this factor must be weighed only if theCourt concludes the defendant would otherwise be entitled towithdraw his guilty plea.


William Leland's motion to withdraw his plea of guilty isDENIED. The Motion is untimely and the Defendant has failed topresent a fair and just reason for withdrawal. SO ORDERED.

1. This Court entered a preliminary order of forfeiture onJanuary 29, 2004 and a final order of forfeiture on April 19,2004. His Motion to Withdraw Guilty Plea makes no mention of theforfeiture count and at oral argument, Mr. Leland clarified thathis motion was not directed to it. Transcript of Oral Argumentat 12.

2. This Court denies Mr. Leland's request for an evidentiaryhearing on this issue. Even if the facts regarding Ganessa Lelandare as he proposes, Mr. Leland's Motion to Withdraw Guilty Pleawould be denied.

3. Rule 11(d), which was formerly found in Fed.R.Crim.P.32(e), also provides the defendant may withdraw his guilty pleabefore sentencing if the court rejects a plea agreement underRule 11(c)(5), a circumstance not applicable here.

4. At oral argument, the Court asked Mr. Largay whether thereis any allegation that the Rule 11 hearing itself was faulty. Heresponded: "not with regard to the hearing. . . ." Oral ArgumentTranscript at 12.

5. At the Rule 11 hearing, the Court asked Mr. Lelanddirectly: "Now, Mr. Leland, have you pled guilty to Counts 1, 2,3, 6, 8, 10, and 14 of the second superseding indictment of thiscase, because you are actually guilty?" Mr. Leland responded,"Yes." Transcript of Rule 11 Hearing at 4.

6. At the Rule 11, the Court asked Mr. Leland: "I'm going toask a very important question, Mr. Leland, and I want your honestanswer. Is there any respect with which you disagree with what isset forth in the Government's version of the offense datedJanuary 27, 2004?" Mr. Leland replied: "No, sir." The Court wenton: "Is the information contained in the Government's version ofthe offense dated January 27, 2004 true to your own personalknowledge?" Mr. Leland replied: "Yes, it is." Transcript of Rule11 Hearing at 17.

7. Mr. Leland's contention about the camera and film,originally a bit of a mystery, was cleared up at oral argument.Mr. Leland was returning from a trip to California, when hismotor vehicle was stopped in Maine and methamphetamine wasdiscovered in his spare tire. Apparently, when he was inCalifornia, he had a camera and took pictures. He contends thesephotographs would not show any evidence of drug dealing, butinstead demonstrate he was in California for legitimate purposes.Mr. Leland says the Government confiscated the camera and filmand refused to turn it over. However, this is a discovery issue.Mr. Leland was clearly aware of this issue, prior to entering hisguilty plea. Mr. Leland has a demonstrated ability to exercisehis legal rights. If he wished to make an issue of the camera andfilm prior to entering the plea, he could have done so. He cannotnow withdraw his plea based on his earlier strategic decision notto press the issue. Moreover, his strategic decision was faciallyreasonable. It is not inconceivable a person committing a crimewould photographically document its perpetration, but his failureto do so would be scant evidence that he did not commit thecrime.

8. As United States v. Vonn, 535 U.S. 55, 72 (2002) pointsout, the standards for plea withdrawals before and after sentenceare different: Rule 11(d)'s "fair and just reason" standardhardens into Rule 11(e)'s "near presumption" after sentencing.

9. Mr. Leland contends he did not have time to thoroughlyreview all the information in the Jencks material before theplea. The trial was originally scheduled for jury selection forJanuary 26, 2004. Following receipt of the Jencks material, Mr.Leland moved to continue the trial to January 29, 2004 to allowmore time to review the Jencks material. This motion was granted.Mr. Leland did not move for any additional time to review theJencks material and entered his guilty plea on January 27, 2004.If Mr. Leland needed additional time to review the material theGovernment had disclosed, he should have asked for it beforeentering his guilty plea.

10. Mr. Leland conceded he was aware of these matters by thetime of the Presentence Conference. The Court misspoke at thehearing and referred to the Conference as having taken place inSeptember, 2004, when in fact the second Presentence Conferencetook place on July 27, 2004. If the July date is used, the motionwas filed six months after the defendant had knowledge of thefactual bases for the motion and if the September date is used,the motion was filed four months after he acquired knowledge.Using either date, the motion is untimely.

11. It seems clear Mr. Leland was waiting to see how theSupreme Court resolved Blakely before filing his Motion toWithdraw Guilty Plea. It cannot be coincidental that Mr. Lelanddecided to file his motion on January 19, 2005, one week afterthe Supreme Court's decision in Booker. As pointed out,however, post-plea changes in the law do not in any event providea basis to withdraw a guilty plea.

12. By letter dated March 11, 2004, Mr. Leland wrote the Courtdirectly. In that letter, he noted that the prosecutor hadasserted he had 800 grams of methamphetamine in the spare tire ofthe vehicle. He wrote that "someone tampered with that because Ionly knew of a little over 200 grams." Mr. Largay objected to theCourt's consideration of this letter on the ground ofattorney-client privilege. The attorney-client privilege iswell-established and its rationale straightforward. XYZ Corp. v.United States (In re Keeper of the Records), 348 F.3d 16, 22(1st Cir. 2003). However, "the privilege protects only thosecommunications that are confidential and are made for the purposeof seeking or receiving legal advice. When otherwise privilegedcommunications are disclosed to a third party, the disclosuredestroys the confidentiality upon which the privilege ispremised." Id. (citations omitted). Mr. Leland clearly waivedany attorney-client privilege by writing the Court directly.There was no claim the Defendant himself did not write theletter. The Court has considered the March 11, 2004 Leland letterover his objection.

13. This plea agreement was not a package plea and does notraise the same voluntariness concerns the First Circuit addressedin United States v. Mescual-Cruz, 387 F.3d 1 (1st Cir. 2004).

14. Transcript of Rule 11 Hearing at 18-19.

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